42 U.S. Code § 300gg–21 - Exclusion of certain plans

(a) Limitation on application of provisions relating to group health plans

(1) In general

The requirements of subparts 1 and 2 [1] shall apply with respect to group health plans only—

(A)subject to paragraph (2), in the case of a plan that is a nonfederal governmental plan, and

(B)with respect to health insurance coverage offered in connection with a group health plan (including such a plan that is a church plan or a governmental plan).

(2) Treatment of non-Federal governmental plans

(A) Election to be excluded

Except as provided in subparagraph (D) or (E), if the plan sponsor of a nonfederal governmental plan which is a group health plan to which the provisions of subparts 1 and 2 [1] otherwise apply makes an election under this subparagraph (in such form and manner as the Secretary may by regulations prescribe), then the requirements of such subparts insofar as they apply directly to group health plans (and not merely to group health insurance coverage) shall not apply to such governmental plans for such period except as provided in this paragraph.

(B) Period of election

An election under subparagraph (A) shall apply—

(i)for a single specified plan year, or

(ii)in the case of a plan provided pursuant to a collective bargaining agreement, for the term of such agreement.

An election under clause (i) may be extended through subsequent elections under this paragraph.

(C) Notice to enrollees

Under such an election, the plan shall provide for—

(i)notice to enrollees (on an annual basis and at the time of enrollment under the plan) of the fact and consequences of such election, and

(ii)certification and disclosure of creditable coverage under the plan with respect to enrollees in accordance with section
2701(e).[1]

The election described in subparagraph (A) shall not be available with respect to the provisions of subsections (a)(1)(F), (b)(3), (c), and (d) ofsection
2702[1] and the provisions of sections
2701[1] and
2702(b)[1] to the extent that such provisions apply to genetic information.

(E) Election not applicable

The election described in subparagraph (A) shall not be available with respect to the provisions of subparts I and II.

(b) Exception for certain benefits

The requirements of subparts 1 and 2 [1] shall not apply to any individual coverage or any group health plan (or group health insurance coverage) in relation to its provision of excepted benefits described in section
300gg–91(c)(1) of this title.

(c) Exception for certain benefits if certain conditions met

(1) Limited, excepted benefits

The requirements of subparts 1 and 2 [1] shall not apply to any individual coverage or any group health plan (and group health insurance coverage offered in connection with a group health plan) in relation to its provision of excepted benefits described in section
300gg–91(c)(2) of this title if the benefits—

(A)are provided under a separate policy, certificate, or contract of insurance; or

(B)are otherwise not an integral part of the plan.

(2) Noncoordinated, excepted benefits

The requirements of subparts 1 and 2 [1] shall not apply to any individual coverage or any group health plan (and group health insurance coverage offered in connection with a group health plan) in relation to its provision of excepted benefits described in section
300gg–91(c)(3) of this title if all of the following conditions are met:

(A)The benefits are provided under a separate policy, certificate, or contract of insurance.

(B)There is no coordination between the provision of such benefits and any exclusion of benefits under any group health plan maintained by the same plan sponsor.

(C)Such benefits are paid with respect to an event without regard to whether benefits are provided with respect to such an event under any group health plan maintained by the same plan sponsor or, with respect to individual coverage, under any health insurance coverage maintained by the same health insurance issuer.

(3) Supplemental excepted benefits

The requirements of this part shall not apply to any individual coverage or any group health plan (and group health insurance coverage) in relation to its provision of excepted benefits described in section
300gg–91(c)(4)[1] of this title if the benefits are provided under a separate policy, certificate, or contract of insurance.

(d) Treatment of partnerships

For purposes of this part—

(1) Treatment as a group health plan

Any plan, fund, or program which would not be (but for this subsection) an employee welfare benefit plan and which is established or maintained by a partnership, to the extent that such plan, fund, or program provides medical care (including items and services paid for as medical care) to present or former partners in the partnership or to their dependents (as defined under the terms of the plan, fund, or program), directly or through insurance, reimbursement, or otherwise, shall be treated (subject to paragraph (2)) as an employee welfare benefit plan which is a group health plan.

(2) Employer

In the case of a group health plan, the term “employer” also includes the partnership in relation to any partner.

(3) Participants of group health plans

In the case of a group health plan, the term “participant” also includes—

(A)in connection with a group health plan maintained by a partnership, an individual who is a partner in relation to the partnership, or

(B)in connection with a group health plan maintained by a self-employed individual (under which one or more employees are participants), the self-employed individual,

if such individual is, or may become, eligible to receive a benefit under the plan or such individual’s beneficiaries may be eligible to receive any such benefit.

Section
2701, referred to in subsec. (a)(2)(C)(ii), (D), is a reference to section 2701 of act July 1, 1944. Section
2701, which was classified to section
300gg of this title, was renumbered section
2704, effective for plan years beginning on or after Jan. 1, 2014, with certain exceptions, and amended, by Pub. L. 111–148, title I, §§ 1201(2),
1563(c)(1), formerly § 1562(c)(1), title X, § 10107(b)(1),Mar. 23, 2010, 124 Stat. 154, 264, 911, and was transferred to section
300gg–3 of this title. A new section 2701 of act July 1, 1944, related to fair health insurance premiums, was added, effective for plan years beginning on or after Jan. 1, 2014, and amended, by Pub. L. 111–148, title I, § 1201(4), title X, § 10103(a),Mar. 23, 2010, 124 Stat. 155, 892, and is classified to section
300gg of this title.

Section
2702, referred to in subsec. (a)(2)(D), is a reference to section 2702 of act July 1, 1944. Section
2702, which was classified to section
300gg–1 of this title, was amended by Pub. L. 111–148, title I, § 1201(3),Mar. 23, 2010, 124 Stat. 154, and was transferred to subsecs. (b) to (f) ofsection
300gg–4 of this title, effective for plan years beginning on or after Jan. 1, 2014. A new section 2702 of act July 1, 1944, related to guaranteed availability of coverage, was added by Pub. L. 111–148, title I, § 1201(4),Mar. 23, 2010, 124 Stat. 156, effective for plan years beginning on or after Jan. 1, 2014, and is classified to section
300gg–1 of this title.

Section
300gg–91(c)(4) of this title, referred to in subsec. (c)(3), was in the original “section
27971(c)(4)” and was translated as reading “section
2791(c)(4)”, meaning section 2791(c)(4) of act July 1, 1944, as added by Pub. L. 104–191, § 102(a), to reflect the probable intent of Congress. Act July 1, 1944, does not contain a section
27971.

Prior Provisions

A prior section 2722 of act July 1, 1944, was renumbered section
2723 and is classified to section
300gg–22 of this title.

Pub. L. 111–148, §§ 1563(a)(1) and
1563(c)(12)(A), formerly §§ 1562(a)(1) and
1562(c)(12)(A), as renumbered by Pub. L. 111–148, § 10107(b)(1), made identical amendment, striking out subsec. (a). Prior to amendment, text read as follows: “The requirements of subparts 1 and 3 shall not apply to any group health plan (and health insurance coverage offered in connection with a group health plan) for any plan year if, on the first day of such plan year, such plan has less than 2 participants who are current employees.”

Pub. L. 111–148, § 1563(a)(4)(A), formerly § 1562(a)(4)(A), as renumbered by Pub. L. 111–148, § 10107(b)(1), substituted “subparts 1 and 2 shall not apply to any individual coverage or any group” for “subparts 1 through 3 shall not apply to any group” in introductory provisions.

Pub. L. 111–148, § 1563(a)(4)(B)(i), formerly § 1562(a)(4)(B)(i), as renumbered by Pub. L. 111–148, § 10107(b)(1), substituted “subparts 1 and 2 shall not apply to any individual coverage or any group” for “subparts 1 through 3 shall not apply to any group” in introductory provisions.

Subsec. (d)(2)(C). Pub. L. 111–148, § 1563(a)(4)(B)(ii), formerly § 1562(a)(4)(B)(ii), as renumbered by Pub. L. 111–148, § 10107(b)(1), which directed amendment of subpar. (C) by inserting “or, with respect to individual coverage, under any health insurance coverage maintained by the same health insurance issuer” without language specifying placement, was executed by making the insertion before period at end to reflect the probable intent of Congress.

“(A) with respect to group health plans, and health insurance coverage offered in connection with group health plans, for plan years beginning after the date that is 1 year after the date of enactment of this Act [May 21, 2008]; and

“(B) with respect to health insurance coverage offered, sold, issued, renewed, in effect, or operated in the individual market after the date that is 1 year after the date of enactment of this Act.”

Effective Date of 1996 Amendment

Amendment by Pub. L. 104–204applicable with respect to group health plans for plan years beginning on or after Jan. 1, 1998, see section 604(c) ofPub. L. 104–204set out as an Effective Date note under section
300gg–25 of this title.

Effective Date

Section applicable with respect to group health plans, and health insurance coverage offered in connection with group health plans, for plan years beginning after June 30, 1997, except as otherwise provided, see section 102(c) ofPub. L. 104–191, set out as a note under section
300gg of this title.

Regulations

Pub. L. 110–233, title I, § 102(d)(1),May 21, 2008, 122 Stat. 895, provided that: “Not later than 12 months after the date of enactment of this Act [May 21, 2008], the Secretary of Health and Human Services shall issue final regulations to carry out the amendments made by this section [see Effective Date of 2008 Amendment note above].”

Assuring Coordination

Pub. L. 110–233, title I, § 106,May 21, 2008, 122 Stat. 905, provided that: “Except as provided in section
105(b)(1) [42 U.S.C. 1320d–9 note], the Secretary of Health and Human Services, the Secretary of Labor, and the Secretary of the Treasury shall ensure, through the execution of an interagency memorandum of understanding among such Secretaries, that—

“(1) regulations, rulings, and interpretations issued by such Secretaries relating to the same matter over which two or more such Secretaries have responsibility under this title [enacting sections
300gg–53 and
1320d–9 of this title and section
9834 of Title
26, Internal Revenue Code, amending this section, sections
300gg–1,
300gg–22,
300gg–61,
300gg–91, and
1395ss of this title, sections
9802 and
9832 of Title
26, and sections
1132,
1182, and
1191b of Title
29, Labor, and enacting provisions set out as notes under this section, sections
1320d–9 and
1395ss of this title, section
9802 of Title
26, and section
1132 of Title
29] (and the amendments made by this title) are administered so as to have the same effect at all times; and

“(2) coordination of policies relating to enforcing the same requirements through such Secretaries in order to have a coordinated enforcement strategy that avoids duplication of enforcement efforts and assigns priorities in enforcement.”